Source: Arbitration International, Vol. 24 No. 2 (2008), pp.

277 - 295

The Status of Vacated Awards in France: the Cour de Cassation Decision in

Putrabali
PHILIPPE PINSOLLE(*)
I. Introduction
ON 29 JUNE 2007, the French Cour de cassation, the highest court in France, rendered a
landmark decision in the Putrabali case.(1) This decision is as significant in our view as the
decision rendered in 1963 in the Gosset case, where the Cour de cassation admitted for the
first time the principle of the separability of the arbitration agreement.(2) Quite logically, the
Putrabali decision has attracted a number of commentaries that are already published or will
be published soon.(3)
The reason for this importance may be attributed to the fact that it was the first time that the
Cour de cassation had to make a decision on the enforcement in France of awards set aside in
the country of origin since the famous Hilmarton decisions. In fact, the reasons for this
importance are more fundamental. Rather than merely endorsing the solution reached by the
Paris Court of Appeal, and subsequently by the Cour de cassation, in the Hilmarton case and
the subsequent cases, the Cour de cassation provided a firm theoretical foundation for this
solution.
The Cour de cassation, following a suggestion in French doctrine, has confirmed the
existence of an arbitral legal order, distinct from national legal orders, by affirming that the
award was not anchored in any national legal system. It also "277"characterised the
international arbitral award as an international judicial decision. This article will focus
essentially on this second aspect by describing the Cour de cassation decision, analysing its
legal foundations, and assessing its practical consequences.
II. The Cour de Cassation's Decision in Putrabali
Following a brief overview of the facts of the underlying dispute in Putrabali, and of the
decision of the French Court of Appeal, we will summarise the arguments put forward before
the Cour de cassation and the solution given by that court.
a. Facts of the Putrabali Dispute and Decision of the Paris Court of Appeal
The underlying dispute in the Putrabali case was a maritime dispute. An Indonesian
company, P.T. Putrabali Adyamulia, sold certain quantities of Muntok white pepper to a
French company, Socit Est Epices (later Rena Holding). The contract incorporated by
reference the rules of the International General Produce Association Ltd (IGPA). Goods were
shipped in Indonesia on 27 January 2000. The next day, on 28 January 2000, the seller
Putrabali sent declarations of shipment to the brokers for onward transmission to the buyers.
On 1 February 2000, the containers and the goods sank off Bangka Island in Indonesia. The
dispute arose following this event as the sellers, Putrabali, insisted on being paid for the
goods. The sellers then initiated arbitration under the rules of the IGPA and, both arbitrators
having been unable to agree, an umpire made an award for the claimant and directed that the
buyers should set off the price against presentation of the shipping documents. As is possible
under IGPA rules, the buyers appealed, and the Board of Appeal reversed the umpire's

decision, finding that the buyers committed no breach of contract. That award was in turn
appealed on points of law before the English High Court. By a judgment dated 19 May 2003,
(4) the English High Court partially set aside the award and concluded that the buyers had
committed a breach of contract by defaulting on the payment, and remitted the case to
arbitration. A second award, dated 19 August 2003, directed the buyers, Rena Holding, to pay
to Putrabali an amount of c163,086.04.
In parallel, Rena Holding presented the first award, dated 10 April 2001, for exequatur in
France (i.e. recognition and enforcement in France). Exequatur was granted and the seller,
Putrabali, appealed that decision. The appeal was heard by the Paris Court of Appeal and the
decision was rendered on 31 March 2005.(5) In that decision, the Paris Court of Appeal
refused to reverse the exequatur judgment. Putrabali argued that the award dated 10 April
2001 had been set aside and that it was a fraud to attempt to enforce it in France. The Paris
Court of Appeal replied that the grounds for refusing enforcement in France of an
international arbitral award were exhaustively enumerated by article 1502 "278"NCPC, and
that the fact that the award had been set aside in the country of origin was not one of those
grounds. As a result, there was no obstacle to the recognition and enforcement in France of
the award dated 10 April 2001. This solution is not new. It has consistently been decided in
France in a series of cases(6) (including Hilmarton(7) and, recently, Bechtel)(8) that the fact
that an award had been set aside in the country where it was rendered is not a ground for
refusing enforcement of that award in France.
Following this judgment, Putrabali submitted the issue to the French Cour de cassation, and
it was for that court to decide what solution should be given to the issue of the enforcement
in France of an award set aside in its country of origin.
b. Arguments Before and Solutions Given by the Cour de Cassation
Putrabali submitted that the Court of Appeal decision should be overturned on seven different
grounds. None of these grounds questioned the position that an award set aside in its country
of origin can nevertheless be enforced in France. "279"This is not surprising. As a matter of
French law, it is an established position which could not be criticised with any prospect of
success before the Cour de cassation.
In fact, not only did Putrabali not challenge the fact that, under French law, there was no
specific ground to refuse the enforcement of an award set aside in its country of origin, but
two of the arguments presented by Putrabali specifically referred to the rule according to
which the fact that an arbitral award had been set aside in a foreign country does not preclude
any interested party requesting in France the exequatur of the same award.
In summary, the arguments submitted by Putrabali revolved around the following lines.
According to Putrabali, the decision of the Court of Appeal had to be quashed because of the
following reasons: (i) the existence of an obligation of procedural loyalty that was allegedly
breached by Rena Holding; (ii) the fact that the use of the award dated 10 April 2001, and its
use before the court as an arbitral award, was an abuse of right; (iii) the fact that the award
dated 10 April 2001 could no longer be characterised as an arbitral award within the French
meaning of that concept; and essentially (iv) the fact that it was contrary to the express will
of the parties, which by definition contemplated the possibility for a party to appeal on points
of law, to take into account, for the purpose of enforcement, an award which was in fact in
the course of the arbitration proceeding, i.e. prior to this appeal being heard.
Notwithstanding the fact that Putrabali was apparently not questioning, in a direct manner,
the principle according to which an award set aside in its country of origin can nevertheless
be enforced in France, it was clear that it was precisely this principle that was the centre of its
criticisms. It was also the first time that the French Cour de cassation had to make a

pronouncement on the theoretical justification for this principle which had previously been
justified, on a theoretical basis, only in decisions of the Paris Court of Appeal. That being
said, given that the Paris Court of Appeal centralises all arbitration matters in the specialised
chamber with the same magistrates sitting all the time, the decisions of the Paris Court of
Appeal, in matters relating to international arbitration, are extremely authoritative in France.
The Cour de cassation rejected Putrabali's argument. The reasons advanced by the Cour de
cassation went far beyond what was strictly necessary in order to reject Putrabali's
arguments. The court could have merely pointed out that none of the grounds raised by
Putrabali was well founded. Rather, the court decided to provide a theoretical basis for the
rule according to which awards set aside in their country of origin can be enforced in another
country.
The Cour de cassation rejected the objections advanced by Putrabali as follows:
[2] However, an international arbitral award which is not anchored in any national legal
order is an international judicial decision whose validity must be ascertained with
regard to the rules applicable in the country where its recognition and enforcement is
sought."280"
[3] Under Art. VII of the [1958 New York Convention], Rena Holding was allowed to seek
enforcement in France of the award rendered in London on 10 April 2001 in accordance
with the arbitration agreement and the IGPA rules. It could also base its request on the
French rules on international arbitration, which do not provide that the annulment of an
arbitral award by the courts of the country where it was rendered is a ground for refusing
its recognition and enforcement.
This holding confirms the following three principles.
First, it is always open to a party to base its request for enforcement and recognition of an
arbitral award on French rules rather than under rules of the New York Convention. This is
because French rules are more favourable than those of the New York Convention, and
because Article VII of the New York Convention allows interested parties to avail themselves
of rules that are more favourable. This is an uncontroversial position which is internationally
accepted.
Secondly, an international arbitral award is not anchored in any national legal order. The
French Cour de cassation thus endorsed the delocalised view of arbitration that has been
promoted over the last three decades in French doctrine and that has been accepted on
numerous occasions by the Paris Court of Appeal. In the eyes of the French legal system, an
international arbitral award is not the product of any national legal order. In the past, the
French courts had used the expression according to which the international arbitral award
was not integrated in the legal order of the country of origin.(9) This formulation prompted
criticisms.(10) The new formulation goes further, and affirms the existence of an arbitral
legal order, in which the international arbitral award is anchored, that is distinct from national
legal orders. This is certainly the most innovative part of the decision.
Thirdly, the decision confirms that an arbitral award is, in and of itself, an international
judicial decision. This proposition seems intuitively correct. In fact, it corresponds to the
approach adopted not only in many legal systems, but also by many international
conventions and under international law.
III. Legal Foundations of the Putrabali Decision
The reasoning adopted by the French Cour de cassation in order to justify the recognition and
enforcement in France of awards set aside in the country of origin rests on two propositions:
(i) the fact that an international arbitral award is not anchored in any legal system; (ii) the
fact that an international arbitral award is an international judicial decision.

"281"
a. Arbitral Award is Not Anchored in any National Legal Order
By confirming that an international arbitral award is not anchored in any national legal order,
the French Cour de cassation confirmed the long-standing position of the French courts and
that of the majority of the French doctrine, according to which an arbitral award is not
grounded in any particular legal order. It thus endorsed the delocalised view of arbitration.
Until recently, it was the existence of this delocalised view that justified the solution given by
the French courts to the issue of the enforcement of awards set aside in their country of
origin. The justification advanced was that the award was not integrated in the legal order
of the country of origin.(11) In the Putrabali decision, the Cour de cassation went one step
further. It confirmed not only that the international arbitral award is not anchored in the legal
order of the seat of the arbitration, but it also affirmed that an international arbitral award is
not anchored in any other legal national order. The position of the Cour de cassation is
therefore that an international arbitral award is not anchored in any national legal order at all.
Contrary to the suggestion of certain authors,(12) that does not mean that the Cour de
cassation has, by this decision, endorsed the proposition according to which international
arbitral awards float in a legal vacuum. Rather, by this decision, the Cour de cassation has
confirmed the very existence of an arbitral legal order which is distinct from national legal
orders.
The notion of an arbitral legal order was first crystallised, and justified on a theoretical basis,
by Prof. Emmanuel Gaillard in his seminal paper given at the end of the Sixth Brazilian
Congress on Arbitration in November 2006.(13) Since then, Prof. Gaillard has developed his
analysis in his lectures at the Hague Academy of International Law on the philosophical
aspects of arbitration.(14) It is far beyond the scope of this article to summarise the
theoretical justifications for the existence of an arbitral legal order distinct from national
legal orders, and the practical consequences flowing from the existence of an autonomous
arbitral legal order. Readers should consult directly the works of Prof. Gaillard on this issue.
All that can be said in this article is that by its decision of 29 June 2007, the French Cour de
cassation has endorsed the existence of an autonomous arbitral legal order.
The existence of an arbitral legal order distinct from national legal orders will no doubt be
questioned by a number of practitioners and academics in the arbitration community. This
concept may well be described as resting on little more than a mere dictum of the French
Cour de cassation that followed a theoretical construction developed in the French doctrine.
Yet, back in 1963, when the same French Cour de cassation affirmed for the first time the
separability of the arbitration agreement from the underlying contract, it was also a
revolutionary concept at the time. It took more than 25 years for jurisdictions not notable for
"282"being hostile to arbitration, such as the English courts, to admit the same concept in the
decision of Harbour v. Kansa in 1992.(15) Today, however, the separability of the arbitration
agreement is internationally accepted and it is recognised as one of the very foundations of
the success of international arbitration worldwide.(16)
Similarly, and perhaps more directly analogous to the present situation, it took quite some
time for the international arbitration community to admit the idea that arbitrators could apply
rules of law other than the law of a given legal system, in order to deal with the merits of the
dispute, and that they were not bound by the conflict of laws rules of the seat of the
arbitration. The famous paper Lex Facit Arbitrum by F.A. Mann, published in 1967,(17)
submitted in essence that only a national legal system could provide the basis upon which the
arbitrators were to adjudicate a given dispute, and that the legal system in question had to be
selected by applying the conflict of laws rules of the seat of the arbitration. The underlying

philosophy was that arbitration had to be amenable to supervision by judges of the seat of the
arbitration. Along the same lines, many criticisms followed regarding the existence of a lex
mercatoria, and the question whether either lex mercatoria or, for example, principles
common to French and English law could constitute genuine rules of law.(18)
Today, however, it is widely accepted that arbitrators have no forum, and that they are
entitled to apply not only the law they deem appropriate, without referring to any rules of
conflict of laws, but also more generally rules of law, which includes lex mercatoria, the
principles common to two given legal systems (as was the case in the Channel Tunnel
arbitration)(19) or general principles of law (as was the case in the Andersen arbitration).(20)
This ability is now endorsed by the rules of many arbitral institutions, some of which
modified their rules in order to allow it.(21) It is also endorsed by the majority of arbitral
doctrine(22) and by various "283"international conventions.(23) Admittedly, the UNCITRAL
Rules need to be revised in this respect, but the current proposals for revision precisely
suggest that the reference in article 33(1) to the applicable law should be modified to refer
to the applicable rules of law that arbitrators may apply.(24)
Again, French law was the pioneer on this issue by codifying, in 1981, that arbitrators are
entitled to apply rules of law, as distinct from the law of a given legal system, in order to
resolve disputes, and that they can select the relevant law or rules of law directly, without
having recourse to conflict of laws rules.(25) This too was revolutionary at the time, and yet
it is now internationally accepted.
Without necessarily predicting the same success to the concept of an arbitral legal order, one
must admit that the consequences of the existence of this concept are potentially far-reaching.
For its part, the second proposition upon which the Cour de cassation judgment is based, i.e.
the fact that an international arbitral award is an international judicial decision, is easier to
accept. Yet, if this premise is accepted, a logical consequence is the existence of a distinct
arbitral legal order.
b. An International Arbitral Award is an International Judicial Decision
The second justification advanced by the French Cour de cassation in order to reject the
challenge to the decision of the Court of Appeal was that an international arbitral award is an
international judicial decision.
The proposition according to which an international arbitral award is an international judicial
decision does not seem controversial on its face. This may well be because this proposition
does not in fact refer to a firmly defined legal notion. The notion of an international judicial
decision is far from being uniformly defined. In order to verify the accuracy of the holding of
the French Cour de cassation, it is useful to check to what extent an arbitral award can be
equated with a judicial decision, and subsequently to determine the circumstances in which
the same arbitral award may be characterised as an international judicial decision.
"284"
i. An arbitral award is a judicial decision
An analysis of notions of judicial decisions and arbitral awards shows that there is no
uniform definition of these notions. Even the draft of the Hague Convention for the
recognition and enforcement of judgments, now abandoned, did not define the notion of
judicial decision. As for arbitral awards, it is well known that there is no definition either of
what is an arbitral award.(26)
In fact, both arbitral awards and judicial decisions are primarily defined by their regime. In
other words, it is because certain characteristics are identified that a given decision can be

characterised as a judicial decision or as an arbitral award, respectively.

Those characteristics are the following:
(a) judicial decisions and arbitral awards are binding;(27)
(b) judicial decisions and arbitral awards are intended finally to dispose of a given dispute;
(28)
(c) judicial decisions and arbitral awards have res judicata effect;(29)
(d) judicial decisions and arbitral awards can be recognised and enforced;(30)
(e) judicial decisions and arbitral awards, even if not enforced or recognised, can
nevertheless constitute proof of certain facts or be taken into account as a fact in other
proceedings.
"285"
As a result, there is no doubt that arbitral awards can be equated with judicial decisions, or
more exactly that they share fundamental characteristics in common. Ultimately, this is
because arbitration is a way of administrating justice.
ii. Circumstances in which an arbitral award can be characterised as an international
judicial decision
If there is no uniform definition of the notion of judicial decisions, there is even less a
uniform definition of the notion of an international judicial decision. An international
judicial decision can be a decision emanating from an international tribunal, such as the
International Court of Justice (ICJ).(31) It can also be a decision rendered by a domestic
court in an international matter. Finally, it can mean a decision which produces effects
internationally.
In the absence of a uniform definition of international judicial decisions, it is necessary to
examine the circumstances in which arbitral awards can be characterised, or have been
recognised, as constituting international judicial decisions.
A crucial characteristic of international judicial decisions is that they are not the product of a
given national legal order. Conversely, they are recognised by national legal orders in which
their enforcement is sought as emanating not from another national legal system (in which it
would be a judicial decision of the latter) but from a supra-national legal order.
The question is: what type of arbitral award will pass this test? In order to answer this, it is
necessary to consider the point of view of international law and that of various national laws.
Moreover, it may be helpful to make a distinction between those arbitral awards whose legal
regime is entirely defined by a given treaty (e.g. ICSID awards) or, more generally, that are
primarily based on a treaty (e.g. awards of the IranUnited States Tribunal), and arbitral
awards whose legal regime depends both on a treaty (such as the New York Convention) and
national laws, i.e. the vast majority of commercial arbitral awards.
As a starting point, it is clear that certain arbitral awards are, by definition, international
judicial decisions simply because they cannot be characterised, under any analysis, as being
the product of a national legal system. This is the case for awards rendered under
international law in inter-state disputes. Although, under international law, there is no direct
definition of the notion of international judicial decisions, Article 38 of the Statute of the ICJ
expressly refers to jurisprudence as being one of the sources of international law.
Arbitral awards undoubtedly belong to jurisprudence.(32) Thus, arbitral awards rendered by
arbitrators in inter-state disputes do form part of the sources of "286"international law.(33)
They are international by nature. The same goes for arbitral awards that are primarily based
on a treaty. For example, the awards rendered by the compensation commission established
by the Treaty of Versailles, following the First World War, have been recognised in the
United States as international judicial decisions: the judgments of the Mixed Franco-German

Tribunal are res judicata against defendant corporation.(34)

The same goes for awards of the IranUnited States Tribunal. It has been argued, before US
courts, that an award rendered by the IranUnited States Tribunal could not be enforced
because it was a creature of international law, and not national law.(35) This argument was
rejected and the US courts, rightly, pointed out that those awards were international judicial
decisions and that they could be recognised as such, without the need for them first to obtain
the blessing of a national legal system.(36)
ICSID awards (i.e. awards rendered under the 1965 Washington Convention) constitute
another example of international judicial decisions. As is well-known, the purpose of the
ICSID Convention is to regulate disputes between investors of a contracting state and another
contracting state.(37) By definition, ICSID awards are not grounded in any legal order. They
are governed entirely by the ICSID Convention. There is no recourse against those awards
before national courts.(38) More generally, there is a prohibition on national courts
intervening in the ICSID process(39) and, finally, contracting states accept to enforce ICSID
awards as a final decision of last instance in their respective legal orders.(40)
ICSID awards exist independently of any national legal order, and even those who promote a
strict territorialist approach to arbitration do not question this. By their very nature, ICSID
awards are international judicial decisions. Why, then, should awards rendered in investment
disputes, but not benefiting from the ICSID Convention,(41) be treated differently from
ICSID awards? In fact, they should not. They are primarily based on a treaty, be it a bilateral
or a multilateral instrument, and they perform exactly the same function as ICSID awards:
they finally settle disputes between foreign investors and host states. As a result, there
"287"is no reason why they should be treated differently from ICSID awards. They are also
international awards by nature, and therefore international judicial decisions.
Some will argue that the legal regime of those awards is not encapsulated in a treaty, like that
of ICSID awards, and that as a result they are merely awards rendered in a given country in
an investment dispute. Those who adopt this view naturally conclude that awards rendered in
investment disputes in, say, Sweden, are Swedish awards and not international awards. This
means, however, that those awards are to be treated for all purposes like any other Swedish
domestic award.(42) It suffices to enunciate this proposition in order to realise that this view
is artificial. It cannot be seriously maintained that an award rendered in Sweden in a BIT
dispute is a domestic award. This conclusion is completely divorced from reality. Disputes
between investors and host states are the paradigm of international disputes and the resulting
award can only be international.
Moreover, accepting the opposite view would result in making the nature of the award
dependent on the choice exercised by the investor when the investor files the request for
arbitration. When there is an option between ICSID and ad hoc arbitration, the resulting
awards would be characterised as international or domestic depending on whether the
investor has chosen ICSID or not. This cannot be the correct view.
There is a third reason that leads to the conclusion that awards rendered in non-ICSID
investment disputes are international awards. This reason is that even awards rendered in
international commercial disputes are also characterised as international judicial decisions. It
would be odd if awards rendered in investment disputes followed a different regime.
By awards rendered in international commercial disputes, we mean awards that are based on
an arbitration agreement found in a contract, between two private parties, in an international
matter. The key issue is to determine to what extent these awards exist as judicial decisions,
and produce effects internationally, independently of the blessing given by the legal order
of the place of arbitration, be this blessing given directly, through an action to set aside, or
indirectly when the time limit to file such an action has expired. An objective conclusion is
that, contrary to the view advanced by those who criticise the Hilmarton approach,

international arbitral awards do exist as judicial decisions independently of the legal order of
the place of arbitration for at least three sets of reasons.
First, and this has been observed many times, one of the objectives of the New York
Convention was to get rid of the double exequatur that prevailed under the regime of the
previous Geneva Conventions. Nobody denies this, and nobody denies that this objective was
attained by the Convention. It therefore means that an arbitral award benefiting from the
Convention exists and can produce effect independently of its exequatur in its country of
origin.
"288"
Secondly, quite logically, if there is an action to set aside in the country of origin it is not
mandatory to stay the enforcement action in another country.(43) This means that the award
exists as such, and can be enforced, pending such an action. Moreover, even if the award is
set aside in the country of origin, it is not an absolute bar to its enforcement under the
Convention.(44)
Thirdly (and this is decisive), nobody dares to question the fact that awards rendered in one
of the five countries that give the parties the possibility to waive the action to set aside still
benefit from the Convention. These five countries are Belgium, Sweden, Switzerland, Peru
and Tunisia.(45) By definition, when the parties have elected to waive their right to challenge
the award,(46) there will be no possibility of any blessing by the courts of the country of
origin. Yet, the award can be recognised and enforced under the New York Convention. It is a
direct recognition of the fact that this award constitutes an international judicial decision.
Some will argue that because the parties have elected to waive their right to challenge the
award, it has become final in its country of origin, and that therefore it is only normal that it
be enforced under the Convention, but this is simply not true. When the parties have elected
not to challenge the award, the award is by no means final in the country of origin. In fact, it
is not even part of the legal order of the country of origin. In order to integrate into this legal
order, it must be enforced, generally through the New York Convention as if it were a foreign
award,(47) thereby leaving the courts of the place of arbitration a certain degree of control
over the award.
Thus, awards rendered in those five countries, when the parties have waived their right to
challenge the award, exist and can produce effect internationally under the New York
Convention without being integrated in any national legal order at all.
I have confined myself to this series of reasons found in the New York Convention in order
to show that it is in fact an internationally accepted solution that "289"international awards
exist and can produce effect internationally without being blessed by the law or the court of
the country of origin. It also shows that the position long adopted by the French courts
according to which an international arbitral award is not integrated in the country of origin
does accord with this approach. An international arbitral award stands as soon as it is
rendered as an international judicial decision irrespective of the view subsequently taken by
the courts of the place of arbitration.
It is therefore no more than a legal fiction to maintain that the same award will be
retroactively denied any effect (and in fact any existence) in the event that the courts of the
place of arbitration subsequently decide to set aside the award. This legal fiction results from
a parti-pris which equates international arbitrators with judges of the place of arbitration, and
it reinstates in practice the need for a double exequatur, thus flying in the face of the goals of
the New York Convention. The reality is that, in this situation, there are two decisions: the
arbitral award which is an international judicial decision, and a local court decision setting
aside this award. If one accepts the existence of these two decisions independently from each
other, there are numerous consequences flowing from it.

IV. Consequences of the Characterisation of an International Arbitral Award as an

International Judicial Decision
The effect of the characterisation of the international arbitral award as an international
judicial decision is to acknowledge the fact that the international arbitral award is a judicial
decision per se which does not need the blessing of any national court in order to be
recognised and enforced. This is not a controversial proposition in fact. When there is no
annulment decision or when the challenge is rejected, nobody questions the fact that the
international arbitral award is an international decision that can be enforced and recognised
in accordance with the New York Convention. Why should there be a difference, then, if a
court has decided to annul the award? In theory, there is none.
Given that international arbitral awards are international judicial decisions existing per se,
irrespective of the view of the law or the courts of the place of arbitration, the Hilmarton
debate is significantly reduced. The question for the courts of countries that are not the place
of arbitration becomes which decision should prevail between the international arbitral award
and the decision of the court of the place of arbitration that purports to annul this award.
In reality, the question is not even which decision should prevail, but under which
circumstances the courts of the place of enforcement will recognise the international arbitral
award.
The courts of each country where enforcement is sought will have to determine if they accept
this award in their legal order. They will do so without regard to the decision reached by the
courts of the place of arbitration, although they may well reach the same conclusion and
refuse the enforcement of the "290"award. This is because the decision of the courts of the
place of arbitration produces effect only in the legal order of the place of arbitration. This is
also why the existence, or indeed the recognition, of the foreign decision purporting to annul
the award is no bar to the recognition of the award itself. In other words, by recognising a
foreign decision that purports to annul an award, the courts of the place of enforcement only
recognise the fact that the decision in question annulled the award in the state in which it was
rendered.
The theoretical justification for this reasoning is found in the existence of an arbitral legal
order distinct from the national legal orders. It is because the international arbitral award is
grounded in the arbitral legal order, and not in the legal order of the place of arbitration, that
the existence of this award is out of the reach of the courts of the place of arbitration. All that
the courts of the place of arbitration can decide is that this award will be denied existence in
their legal order.
Even those who criticise the French position are forced to admit that it is entirely compatible
with the New York Convention, if only because of the possibility for the parties to avail
themselves of rules that are more favourable than those of the Convention.(48) Moreover, it
is certainly compatible with the goals of the Convention as it represents a pro-enforcement
approach.
As a result, the debate now focuses on the appropriateness of the French solution. Some
authors have pointed out that in the interest of consistency, every contracting state should
respect the decisions of the court of the seat of the arbitration.(49) The difficulty with this
approach is that the efficiency of the award is sacrificed for the sake of an abstract
consistency. In other words, it is a consistency that works only one way: when the award has
been annulled. When the award has not been annulled there is no such consistency and any
contracting party maintains its rights to enforce or not to enforce the award provided that it
stays within the limits provided by the Convention. This result is therefore extremely abstract
and artificial and does not do any good for the enforcement of arbitral awards, contrary to the

expressed intention of the drafters of the New York Convention.

Unsurprisingly, those who advocate this allegedly consistent solution focus essentially on the
decision of the court of the place of arbitration, and simply forget "291"that there was an
award in the first place. A good example of this deviation is found in the recent decision of
the US Appeals Court of the District of Columbia in the TermoRio case.(50) This decision
confirmed a decision of first instance that refused enforcement in the United States of an
award annulled in Colombia.(51) The striking feature of both decisions, as was rightly
pointed out by the commentator of the decision of first instance in the Revue de lArbitrage,
is that the debate revolved exclusively around the effect to be given in the United States to
the decision of the Colombian courts annulling the award.(52) It was as if both parties, and
the judges, had forgotten that an arbitral award had ever been rendered in the first place.
The crucial question, which was the recognition and enforcement of this award (not the
Colombian court decision) was completely lost in unnecessarily lengthy discussions about
the alleged deference that the US court should render to the Colombian court decision. As
pointed out by learned commentators, this approach is simply wrong under the New York
Convention, as it amounts to adding a condition for recognition of an arbitral award which
does not exist in the Convention.(53) It is also contrary to the object and purpose of this
Convention, which is to promote the recognition and enforcement of arbitral awards, not
court judgments purporting to annul them. It also reintroduces the need for a double
exequatur, but only to the extent that this double exequatur leads to the inefficiency of the
award. Finally, it has devastating practical consequences, as it means that companies that
have been able to secure access to arbitration in their contract, but which were not in a
position to obtain a neutral place of arbitration, are in a position that is no better than those
who have accepted the jurisdiction of the local courts. They are entirely in the hands of the
local courts, whilst they believe that they have secured a neutral forum with their arbitration
agreement. As a result, in the event that things go wrong, it is arbitration as a whole that will
be blamed, not the local courts. Perhaps for the next country, the same company will simply
accept the jurisdiction of the local courts, as arbitration seems unable to deliver on its
promise that it is a neutral forum. The promoters of the TermoRio approach, especially those
who truly practice arbitration, should perhaps consider this unappealing prospect.
"292"
Appendix. Cour de Cassation, First Civil Chamber, 29 June 2007(54)
a. Parties
Petitioner: PT Putrabali Adyamulia (Indonesia); Respondent: Rena Holding.
b. Facts
PT Putrabali Adyamulia (Putrabali) sold a cargo of white pepper to Est Epices, which later
became Rena Holding. The contract between the parties provided for arbitration of disputes
according to the Rules of Arbitration and Appeal of the International General Produce
Association (IGPA).
A dispute arose when the cargo was lost in the sinking of the ship during transport and Rena
Holding failed to pay the contract price. Putrabali commenced IGPA arbitration as provided
for in the contract. On 10 April 2001, an IGPA arbitral tribunal in London rendered an award
holding that Rena Holding was justified in its refusal to pay the contract price (the 2001
award). Putrabali appealed to the High Court in London, which partially annulled the award.
The court deemed that Rena Holding's failure to pay for the cargo amounted to a breach of

contract. On 21 August 2003, the IGPA tribunal issued a second award replacing the 2001
award and bearing the same case number (the 2003 award). The 2003 award was in favour of
Putrabali and directed Rena Holding to pay Putrabali the contract price.
Rena Holding sought enforcement of the 2001 award in France. The president of the Paris
court of first instance granted enforcement. On 31 March 2005, the Paris Court of Appeal
denied Putrabali's appeal from the enforcement decision.
The Court of cassation affirmed the lower court's decision. It reasoned that the validity of
international arbitral awards, which are independent of a national legal order, is to be
ascertained pursuant to the law of the country where enforcement is sought. In the present
case, the more-favourable-right provision in Article VII of the 1958 New York Convention
allowed Rena Holding to seek enforcement of the 2001 award in France under French
arbitration law, which does not list the annulment of the award in the country of rendition as
a ground for refusing enforcement.
c. Judgment
Whereas, the award of 10 April 2001 was granted enforcement [exequatur] by the president
of the Paris court of first instance at the request of Rena Holding, Putrabali contests the
[Court of Appeal's] decision for having denied its appeal from the enforcement decision on
the grounds that: "293"
(1) The obligation to act in good faith (loyaut) prevents a party from seeking enforcement
of an arbitral award when, in accordance with the parties' intention as to the development
of the arbitration, a second award replaced the document submitted for enforcement
before the [French] court was seized, and deprived it of all legal effect. By submitting for
enforcement a document entitled award of 10 April 2001 when the arbitral tribunal,
which first issued that award, subsequently reheard the case in a second instance as a
consequence of an English court setting aside such award and replaced [it] by a second
award, bearing the same number, dated 21 August 2003, Est Epices (now Rena Holding)
violated its obligation to act in good faith. By considering its request as admissible, the
court deciding on the merits violated article 30 NCCP(55) as well as the principle of
good faith which governs all proceedings, including enforcement proceedings.
(2) It is an abuse of right (abuse de droit) for a party to seek enforcement of an arbitral
award when, in accordance with the parties' intention as to the development of the
arbitration, a second award replaced the document submitted for enforcement before the
[French] court was seized, and deprived it of all legal effect. By submitting for
enforcement a document entitled award of 10 April 2001 when, in accordance with the
parties' intention, the arbitral tribunal, after having reheard the case, rendered a second
award, bearing the same number, dated 21 August 2003, Est Epices (now Rena Holding)
abused its right to seek enforcement. By considering its request as admissible
notwithstanding this abuse of right, the court deciding on the merits violated article 30
NCCP and the rules governing the abuse of right.
(3) The rule according to which the annulment of an arbitral award in a foreign state does not
affect the right of the interested party to request the award's enforcement in France was
not applicable here. Indeed, after the setting aside by an English court of the award of 10
April 2001, the arbitral tribunal, which rendered that award, in accordance with the
intention of the parties, reheard the case and, on 21 August 2003, rendered another award
bearing the same number, which replaced the first one and deprived it of all legal effect.
In this respect too, the challenged decision violates article 30 NCCP, the principle of
autonomy and articles 1494, 1498, 1499 and 1502 NCCP.
(4) In an arbitration agreed to by the parties, only a decision that definitively determines the

parties' rights and obligations can be considered an award and therefore be enforceable.
By deciding that the document entitled the award of 10 April 2001 could be granted
enforcement when, in accordance with the arbitral process agreed to by the parties, the
arbitral "294"tribunal, which rendered the first decision, replaced it by a second decision
bearing the same number [this latter decision] being the only one constituting an award
and the only one definitively determining the relative positions of the parties the court
deciding on the merits violated the rule according to which, with regards to the rules of
enforcement, only a decision likely to bind the parties may be classified as an arbitral
award and articles 1498, 1499 and 1502 NCCP.
(5) The recognition or compulsory execution of a document entitled arbitral award violates
international public policy whenever, in accordance with the parties' intention, and before
the [French] court is seized, the arbitrator renders another award bearing the same
number and replacing the document submitted for recognition or enforcement to the
French court. Hence, granting enforcement of the document entitled award of 10 April
2001 was contrary to international public policy since, in accordance with the parties'
intention, the arbitral tribunal replaced this award by another award, bearing the same
number, dated 21 August 2003, [which] deprived the first [award] of all legal effect. By
deciding the contrary, the court deciding on the merits violated articles 1498 and 1502
NCCP as well as international public policy as applicable in the context of enforcement
proceedings.
However, an international arbitral award which is not anchored to any national legal order
is an international judicial decision whose validity must be ascertained with regard to the
rules applicable in the country where its recognition and enforcement is sought.
Under Article VII of the [1958 New York Convention], Rena Holding had the right to seek
enforcement in France of the award, rendered in London on 10 April 2001 in accordance
with the arbitration agreement and the IGPA rules, and to rely on the French rules on
international arbitration, which do not provide that the annulment of an arbitral award by the
courts of the country where it was rendered is a ground for refusing its recognition and
enforcement.
Hence, the Court of Appeal properly decided that the award of 10 April 2001 must be
recognised in France."295"

* Avocat la Cour; Barrister (England and Wales); Shearman & Sterling LLP, Paris.
1 St PT Putrabali Adyamulia, Cass. Civ. 1, 29 June 2007, available at the website of the
Cour de cassation, section Jurisprudence,
http://www.courdecassation.fr/jurisprudence_publications_documentation_2/actualite_jurispr
udence_21/premiere_chambre_civile_568/arrets_569/br_arret_10607.html.
2 Gosset, Cass. Civ. 1, 7 May 1963, (1963) JCP, Ed. G, Part II, No. 13405, and B.
Goldman's note; (1964) JDI 82, comment by J.-D. Bredin; (1963) Rev. Crit. DIP 615,
comment by H. Motulsky; (1963) Dalloz Jur. 545, comment by J. Robert.
3 Already published: (2007) 192 Petites Aff. 20, comment by M. de Boissson; (2007)
Dalloz Actu. Jur. 1969, comment by X. Delpech; P.-Y. Gautier obs. at
www.avocats.fr/space/edouard.bertrand (4 October 2007); JCP.IV.2606 and 2607 (2007);
(2007) Dalloz Panor. 180 and (2007) JDI 1236, comments by Th. Clay; (2007) Rev. Arb 507,
at p. 517, comment by E. Gaillard; (2007) 3 Gaz. Pal. Cah. Arb. 14, comment by Ph.
Pinsolle; and (2007) ASA Bull. 826, comment by P.Y. Gunter. Forthcoming: (2007) Dalloz,
comment by L. Degos; (2007) J Intl Arb., comment by A. Mourre; (2007) Rev. Jur. D Aff.,

comment by J.-P. Ancel.

4 The Intan 6 EV.360A SN [2003] 2 Lloyd's Rep. 700.
5 Cour dappel de Paris (1re Ch. C), 31 March 2005, (2006) Rev. Arb. 665, and E.
Gaillard's note.
6 Norsolor, Cass. Civ. 1, 9 October 1984, (1985) Rev. Arb. 431, comment by B. Goldman;
(1985) JDI 679, comment by Ph. Kahn; (1985) Rev. Crit. DIP 551, 2nd decision, comment
by B. Dutoit; (1985) Dalloz Jur. 101, comment by J. Robert; for an English translation, see
(1985) 24 ILM 360, with an introductory note by E. Gaillard; (1985) 2 J Intl Arb. 67,
comment by D. Thompson; (1986) XI YB Com. Arb. 484; Polish Ocean Line, Cass. Civ. 1, 10
March 1993, (1993) Rev. Arb. 255, 2nd decision, comment by D. Hascher; (1993) JDI 360,
1st decision, comment by P. Kahn; for an English translation, see (1994) XIX YB Com. Arb.
662; Bargues Agro Industries, Cour dappel de Paris (1re Ch. C) 10 June 2004, (2004) Rev.
Arb. 733.
7 St Hilmarton, ICC Award No. 5622, Geneva, 19 August 1988; extracts in (1994) XIX
YCA 105 and in (1993) Rev. Arb. 327; annulled by the Geneva Court of Justice, 17 November
1989, (1993) Rev. Arb. 315, comment by V. Heuz at p. 179; (1994) ASA Bull. 4, comment by
A. Mebroukine; exequatur by the French Tribunal de grande instance de Paris (ord. rf.) 27
February 1990, unpublished; annulment confirmed by the Swiss Tribunal fdral, 17 April
1990, (1993) Rev. Arb. 315, comment by V. Heuz at p. 179; (1994) ASA Bull. 4, comment by
A. Mebroukine; exequatur confirmed in France by Cour dappel de Paris, 19 December
1991, (1993) XIX YCA 655; (1993) Rev. Arb. 300, comment by V. Heuz at p. 179; (1993)
RTD Com. 645, comment by J.-Cl. Dubarry and E. Loquin; (1994) ASA Bull. 445; Second
ICC Award No. 5622, Geneva, 10 April 1992 (Award reversing the earlier award), (1997)
8(1) ICC Bull. 53; exequatur of the second award in France by the Tribunal de grande
instance de Nanterre (ord. rf.), 25 February 1993, unpublished; exequatur of the Swiss
Tribunal fdral's decision by the French Tribunal de grande instance de Nanterre (ord. rf.),
22 September 1993, (1995) XX YCA 194; (1994) 9(1) Intl Arb. Rep. 7, and p. B1; the French
Cour de cassation then overturned the appeal lodged against the exequatur decision of the
first award, Cass. Civ. 1, 23 March 1994, (1995) XX YCA 663; (1994) Rev. Arb. 327,
comment by Ch. Jarrosson; (1994) Clunet 701, comment by E. Gaillard; (1994) RTD com.
702, comment by J.-Cl. Dubarry and E. Loquin; (1995) Rev. Crit. DIP 356, comment by B.
Oppetit; (1995) 23 Petites Aff. 8 (2me esp.), comment by G. Parlani; confirming ordinances
according exequatur to the second award and to the Swiss Tribunal fdral's decision
annuling the first award, Cour dappel de Versailles, 29 June 1995 (two decisions), (1995)
Rev. Arb. 639, critical comment by Ch. Jarrosson; (1996) JDI 120, comment E. Gaillard;
(1995) RTD com. 758, comment by J.-Cl. Dubarry and E. Loquin; (1995) JCP I.3891 para.
17, comment by L. Cadiet; (1996) XXI YCA 524; (1996) IBLJ 156, comment by E. Robine;
overturning these last decisions, Cour de cassation, Cass. Civ. 1, 10 June 1997, (1997) XXII
YCA 696, (1997) Rev. Arb. 329, comment by Ph. Fouchard, spec. No. 17; (1997) JDI 1033,
comment by E. Gaillard; (1998) RTD com. 329, comment by J.-Cl. Dubarry and E. Loquin;
(1997) 12(9) Intl Arb. Rep. 1, comment by H.G. Gharavi; exequatur of the second award in
England, High Court of Justice, Queen's Bench Div., 24 May 1999, (1999) XXIVa YCA 777;
(1999) Rev. Arb. 867, comment by P. Lastenouse; (1999) ASA Bull. 368.
8 Bechtel, Cour dappel de Paris (1re ch. C) 29 September 2005, (2006) Rev. Arb. 695,
comment by H. Muir Watt; (2006) Rev. Crit. DIP 387, comment by A. Szekely; (2005)
Dalloz Panor. 3063, comment by Th. Clay; (2006) JCP I.148 para. 7, comment by Ch.
Seraglini; (2005) 3 SIAR 151, comment by Ph. Pinsolle at p. 159 and A. Mourre at p. 172.
9 See Hilmarton, Cass. Civ. 1, 23 March 1994, supra n. 7, overturning the appeal lodged
against the exequatur decision of the first award, though annulled by the Geneva Court of
Justice.

10 B. Leurent, Rflexions sur lefficacit internationale des sentences arbitrales in

Travaux du Comit franais de Droit International Priv (1995), p. 181, and (1996) Arb.
Intl 269; J.-F. Poudret, Quelle solution pour en finir avec laffaire Hilmarton? Rponse
Philippe Fouchard in (1998) Rev. Arb. 7; H. Gharavi, The International Effectiveness of the
Annulment of an Arbitral Award (Kluwer Law, 2002).
11 Hilmarton, Cass. Civ. 1, 23 March 1994, supra n. 7.
12 X. Delpech, Sentence arbitrale internationale, force excutoire et conflit de juridictions
in (2007) Dalloz 1969.
13 E. Gaillard, Souverainet et autonomie. Rflexions sur les reprsentations de larbitrage
international, closing conference speech, published in (2007) Revista Brasileira de
Arbitragem (forthcoming) and (2007) JDI 1163.
14 E. Gaillard, Aspects philosophiques du droit de larbitrage international, RCADI
(forthcoming).
15 Harbour Assurance Co. (UK) Ltd v. Kansa General International Insurance Co. Ltd
[1992] 1 Lloyd's Rep. 1.
16 The principle of separability of the arbitration agreement is embodied in national
legislations such as those of Belgium, Netherlands, Switzerland, Spain, Egypt, Algeria or
Tunisia. In other countries, it has fallen upon case law to acknowledge this principle, in the
United States (Prima Paint v. Flood and Conklin, 388 U.S. 395 (1967)); Germany
(Landgericht of Hamburg, 16 March 1977, (1978) III YCA 274); Italy (Court of Appeal of
Venice, 26 April 1980, (1982) VII YCA 340); and Japan (Supreme Court, 15 July 1975,
(1979) IV YCA 115).
17 F.A. Mann, Lex Facit Arbitrum in Liber Amicorum for Martin Domke (M. Nijhoff,
1967), p. 157.
18 P. Lagarde, Approche critique de la lex mercatoria in Etudes Goldman (Litec, 1982), p.
125; A. Kassis, Thorie gnrale des usages du commerce (LGDJ, 1984), No. 584 et seq.; M.
Mustill, The New Lex Mercatoria: the First Twenty-five Years in Maarten Bos and Ian
Brownlie (eds.), Liber Amicorum for Lord Wilberforce (Clarendon Press, 1987), p. 149,
reprinted in (1988) Arb. Intl 86.
19 Channel Tunnel Group Ltd and others v. Balfour Beattie Construction and others [1993]
AC 334.
20 Andersen Consulting Business Unit Member Firms (ACBU) v. Arthur Andersen Business
Unit Member Firms (AABU) and Andersen Worldwide SC (AWSC). For the final award, see
ICC Award No. 9797, 28 July 2000, 15 (2000) Intl Arb. Rep. 8 Doc. A-1.
21 See, as a milestone example, the modification of ICC Rules, art. 17, in their 1998 revised
edition; Y. Derains and E. Schwartz, A Guide to the ICC Rules of Arbitration (2nd edn,
Kluwer Law, 2005), p. 232.
22 See e.g., Fouchard Gaillard Goldman on International Commercial Arbitration, edited
by E. Gaillard and J. Savage, (Kluwer Law, 1999), para. 1444; E. Loquin, Les rgles
matrielles internationales, notamment dans le domaine du droit des affaires in 322 RCADI
(2007); E. Gaillard, Transnational Law: a Legal System or a Method of Decision Making?
in (2001) Arb. Intl 59; D. Rivkin, Enforceability of Arbitral Awards Based on Lex
Mercatoria in (1993) Arb. Intl 67.
23 See e.g., Convention on the Settlement of Investment Disputes Between States and
Nationals of Other States (Washington Convention), 18 March 1965, Art. 42: (1) The
Tribunal shall decide a dispute in accordance with such rules of law as may be agreed by the
parties. In the absence of such agreement, the Tribunal shall apply the law of the Contracting
State party to the dispute (including its rules on the conflict of laws) and such rules of
international law as may be applicable; MERCOSUR Convention on International
Commercial Arbitration, Buenos Aires, 23 July 1998, Art. 10; United StatesIran Accords,

Algiers, 19 January 1981, Art. V.

24 Similarly the Rome I Draft Regulation on the Law applicable to contractual obligations
enables the parties to opt for non-State body of law under certain conditions: Proposal for a
Regulation of the European Parliament and the Council on the law applicable to contractual
obligations (Rome I) (COM/2005/0650 final, COD 2005/0261).
25 French New Code of Civil Procedure, art. 1496: The arbitrator determines the dispute
according to rules of law that the parties have chosen; in default of such a choice, in
accordance with rules he deems appropriate. He takes into account all customs in commercial
activities.
26 Fouchard Gaillard Goldman, supra n. 22 at paras. 13461366; M. Hunter, A. Redfern,
N. Blackaby and C. Partasides, Law and Practice of International Commercial Arbitration
(4th edn, Sweet & Maxwell, London, 2004), paras. 8-05 to 8-08; J.-F. Poudret and S. Besson,
Comparative Law of International Arbitration (S. Berti and A. Ponti (trans.)), para. 721
(2007). The UNCITRAL works on the Model Law actually even stumbled on the definition
of an award, see H. Holtzmann and J. Neuhaus, A Guide to the UNCITRAL Model Law on
International Commercial Arbtiration (Kluwer Law and Taxation, 1989), p. 153.
27 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards,
10 June 1958, Art. III: Each Contracting State shall recognize arbitral awards as binding and
enforce them in accordance with the rules of procedure of the territory where the award is
relied upon, under the conditions laid down in the following articles; UNCITRAL Model
Law on International Commercial Arbitration 1985, Art. 35 (with amendments as adopted in
2006): (1) An arbitral award, irrespective of the country in which it was made, shall be
recognized as binding and, upon application in writing to the competent court, shall be
enforced subject to the provisions of this article and of article 36.
28 French New Code of Civil Procedure, art. 1496; Braspetro Oil Services Co. v.
Management and Implementation Authority of the Great Man-Made River Project, Cour
dappel de Paris, 1 July 1999, at 14, (1999) 8 Mealey's Intl Arb. Rep. 24: The qualification
of [a decision as an] award does not depend on the terms used by the arbitrators or by the
parties after a five-month deliberation, the arbitral tribunal rendered the order of 14
May 1998, by which, after a lengthy examination of the parties' positions, it declared that the
request could not be granted because Brasoil had not proven that there had been fraud as
alleged. This reasoned decision by which the arbitrators considered the contradictory
theories of the parties and examined in detail whether they were founded, and solved, in a
final manner, the dispute between the parties concerning the admissibility of Brasoil's
request for a review, by denying it and thereby ending the dispute submitted to them
appears to be an exercise of its jurisdictional power by the arbitral tribunal
Notwithstanding its qualification as an order, the decision of 14 May 1998 is thus
indeed an award (emphasis added).
29 To promote efficiency and finality of international commercial arbitration, arbitral
awards should have conclusive and preclusive effects in further arbitral proceedings: ILA,
Resolution 1/2006; French NCPC, art. 1476: The arbitral award, from the moment that it has
been given, will become res judicata with respect to the dispute that it has determined.
30 New York Convention, Art. III.
31 M. Bedjaoui, The Reception by National Courts of Decisions of International Tribunals
in 28 NYUJ Intl L and Pol. 45 (19951996).
32 I. Brownlie, Principles of Public International Law (6th edn, OUP, 2003), p. 19. See e.g.,
Alabama Claims Arbitration (1872) Moore Arbitrations i. 653; Behring Sea Fisheries
Arbitration (1893) Moore Arbitrations i. 755. See also, Island of Palmas, RIAA ii. 855 and,
generally, the series of Reports of International Arbitral Awards published by the United
Nations since 1948, and the Foreword to vol. I.

33 Brownlie, supra n. 32, quoting such cases as Chorzw Factory (Jurisdiction) (1927)
PCIJ Ser. A no. 9, p. 31; Chorzw Factory (Merits) (1928) PCIJ Ser. A. no. 17, pp. 31, 47;
Fisheries Case (1951) ICJ Rep. 131; Peter Pzmny University (1933) PCIJ Ser. A/B no. 61,
p. 243 (consistent practice of mixed arbitral tribunals); Barcelona Traction Case (Second
Phase) (1970) ICJ Rep. 40.
34 St Vinicole de Champagne v. Mumm Champagne & Importation Co., Inc., 11 F. Supp.
208 (SDNY 1935); Ch. H. Schreuer, The Implementation of International Judicial Decisions
by Domestic Courts in 24 ICLQ 153 at p. 158 (1975).
35 Ministry of Defence of the Islamic Republic of Iran v. Gould Marketing Inc. (1989) 84
AJ Intl L 556 at p. 558.
36 Ibid.
37 ICSID Convention, Preamble and Art. 1; Ch. Schreuer, The ICSID Convention: a
Commentary (Cambridge, 2001), p. 1.
38 ICSID Convention, Art. 53(1).
39 Ibid. Art. 26.
40 Ibid. Art. 54(1).
41 Be they Additional Facility awards, Arbitration Institute of the Stockholm Chamber of
Commerce awards, ICC awards, LCIA awards, UNCITRAL awards, or other ad hoc awards.
42 This is all the more so as Sweden does not differentiate between international arbitration
and domestic arbitration. The Swedish Arbitration Act 1999 applies to both situations without
making a distinction. See art. 46: This Act shall apply to arbitral proceedings which take
place in Sweden notwithstanding that the dispute has an international connection.
43 New York Convention, Art. VI; Gaillard and Savage, supra n. 22 at para. 1691.
44 New York Convention, Art. V(1): see J. van den Berg, The New York Convention of 1958
(Kluwer Law, 1981), p. 265; G. Delaume, Enforcement Against a Foreign State of an
Arbitral Award Annulled in the Foreign State in (1997) IBLR 254; Ph. Fouchard, La porte
internationale de lannulation de la sentence arbitrale dans son pays dorigine in (1997) Rev.
Arb. 329; J. Paulsson, May or Must under the New York Convention: an Exercise in Syntax
and Linguistics in (1998) 14 Arb. Intl 227. For a different contextual and historical
interpretation, see W. Park, Duty and Discretion in International Arbitration in (1999) 93
Am. J Intl L 805, esp. at pp. 808812, reproduced in Arbitration of International Business
Disputes (OUP, 2006), p. 189, esp. at pp. 196198.
45 Belgian Code of Civil Procedure, 10 October 1967 (CJB), art. 1717(4); Swedish Law on
Arbitration, 4 March 1999 (SU), art. 51(1); for Switzerland, see Private International Law
Statute, 18 December 1987 (PILS), art. 192(1); for Peru, see General Arbitration Law, Law
No. 26572, in force 6 January 1996, art. 126; and for Tunisia, Arbitration Code, 27 October
1993, art. 78(2).
46 Tribunal Fdral, 4 October 2005, ATF 131 III 173, (2005) ASA Bull. 496.
47 PILS, art. 192(2): If the parties have waived fully the action for annulment against the
awards and if the awards are to be enforced in Switzerland, the New York Convention of
June 10, 1958 on the Recognition and Enforcement of Foreign Arbitral Awards applies by
analogy.
48 New York Convention, Art. VII: 1. The provisions of the present Convention shall not
affect the validity of multilateral or bilateral agreements concerning the recognition and
enforcement of arbitral awards entered into by the Contracting States nor deprive any
interested party of any right he may have to avail himself of an arbitral award in the manner
and to the extent allowed by the law or the treaties of the country where such award is sought
to be relied upon.
49 E. Schwartz, Do International Arbitrators have a Duty to Obey the Orders of Courts at
the Place of the Arbitration? Reflections on the Role of the Lex Loci Arbitri in the light of a

Recent ICC Award in Liber Amicorum in Honour of Robert Briner (ICC Publishing, 2005),
p. 795; H. Muir-Watt in (2006) Rev. Arb. 700. For learned constructions on this issue, see S.
Bolle, Les mthodes du droit international priv lpreuve des sentences arbitrales
(Economica, 2003); H.-G. Gharavi, International Effectiveness of the Annulment of an
Arbitral Award (Kluwer Law International, 2002). With a slightly different perspective,
advocating for a partial comity policy towards these judgments, and suggesting that no more
deference should be given to these judgments than to the arbitral award itself, see Park,
supra n. 44.
50 US Court of Appeals, District de Columbia, 25 May 2007, TermoRio SA ESP et al. v.
Electranta SP et al., 2007 U.S. App. Lexis 12201; Gaz. Pal. Cah. Arb., 1317 July 2007, p.
49, comment by E. Ordway and B. Derains.
51 US District Court, District of Columbia, 17 March 2006, TermoRio SA ESP et al. v.
Electrificadora del Atlantico SA ESP et al., 421 F. Supp. 2d 87 (D.D.C. 2006). This decision
could avail itself of some decisions in line with the doctrine referred to supra. See e.g., Baker
Marine v. Chevron, 191 F. 3d 194 (2d Cir. 1999), reprinted in (1999) XXIVa YCA 909 and
(2000) Rev. Arb. 135, comment by E. Gaillard. England (as would be seen from the
Hilmarton proceedings, High Court, Queen's Bench Div., 24 May 1999, see supra n. 7), and
certainly Germany (through ZPO, art. 1061(3)), follow the same trend.
52 J. Paulsson in (2006) Rev. Arb. 786.
53 Ibid. and comment by F. Mantilla-Serrano in J Intl Arb. (forthcoming).
54 The General Editor wishes to thank Me Emmanuel Gaillard and Philippe Pinsolle for
their invaluable assistance in preparing the translation of this decision from the French
original.
55 New French Code of Civil Procedure, art. 30 reads: An action is the right of the
claimant to be heard as to the merits of his claim so that the court can decide whether it is
well founded or not. For the opposing party, an action is the right to discuss the merits of that
claim.

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